A Constitutional Declaration that Opens up to the Errors of the Past

If it is true that a Constitution should be based on the agreement of the forces of the nation, then the provisional Constitutional declaration adopted by the Egyptian President ad interim Adly Mansour on 8 July 2013 certainly reflects a unanimous agreement, but on a rejection of the declaration itself. This text with its thirty-three articles, which lays down rules for the management of power during the period of transition after the suspension of the Constitution of 2012, envisages a process of Constitutional revision and establishes the electoral calendar for the legislative and then the presidential elections.

The Tamarrud coalition, which was behind the anti-Morsi petition and the demonstration of 30 June, like various liberal and left-wing parties, complains that it was not involved in the drafting of this text, the origins of which are unknown. It also criticises the concentration of executive and legislative power in the hands of the President and the subordinate position held by the Prime Minister. Other political formations that support the transition request the revision of article 1, according to which Islam is the religion of the State and the principles of Islamic sharîʻa are the principal source of legislation, and contest the definition of ‘principles of Islamic sharîʻa’ that was adopted by the Constitution of 2012. This article, which refers to technical and complex notions of classic fiqh, was the subject of particularly virulent criticisms by the opposition of the time which feared a strengthening of the role of Islamic law. Its presence was a concession to the Salafi parties and allowed the Constitutional declaration to be presented as a compromise text able to unite people beyond the revolutionary alignment.

The provision that guarantees freedom of faith and freedom of worship, albeit limiting this to the religions of the Book, which is also taken from the Constitution of 2012, has the same goal of satisfying the Islamic parties. With respect to the group ‘No Military Trials’, this criticises the declaration for having authorised the trials of civilians by military justice, as was done by the Constitution of 2012. One should also observe that the army is present through the reference to the speech of General Sîsî of 13 July as a foundation of the legitimacy of the Constitutional declaration.

The Muslim Brothers, for their part, reject the test and affirm that it comes from an illegitimate President. The Salafis, on the other hand, criticise the revision of the Constitution envisaged by this text. A committee of ten jurists (six judges and 4 professors of constitutional law), appointed by the respective institutions, is in fact entrusted with drawing up within thirty days a revision of the Constitution of 2012. The Salafis believe that the revision should have been entrusted to an elected assembly and not to appointed experts. The project for the amendment of the Constitution will then have to be submitted to a committee of fifty representatives of various component parts of society which will then have sixty days to examine it and draw up a definitive text, which will then be the subject of a referendum. This procedure of revision is unprecedented in the Constitutional history of Egypt and is somewhat surprising: one would have expected the politicians to agree on the provisions to be amended before entrusting to the jurists the responsibility for making their recommendations. For that matter, the declaration envisages that the fifty members should be appointed by the institutions to which they belong, without specifying the number of representatives that each of these components should have, nor the way in which seats would be distributed amongst them. Its application thus runs the risk of provoking new fractures within Egyptian society and leading to a more or less authoritarian designation of its representatives. For that matter, the experts have not been given any indication as regards the articles to be revised and the kind of majority by which the revisions are to be adopted.

The road map is different from that of 2011/2012: the Constitutional amendments will precede the organisation of the legislative and then the presidential elections, while previously the legislative elections preceded the presidential elections prior to the adoption of the Constitution. This allows the anti-Morsi coalition to maintain control over the revision of the Constitution. The process of revision should last for at most four months and a half and be followed, at the beginning of the year 2014, by legislative and then presidential elections. But this calendar seems ambitious and the deadlines, which are not very realistic, leave little time for negotiations and the search for agreement (cf. Zaid Al-Ali in Foreign Policy).

The divisions within the coalition in power emphasise the difficulties that await the new alignment when the amendments to the Constitution are drawn up and the legislative and presidential elections are organised. How will it possible to draw up an agreed policy when it is not even possible to reach agreement on the rules of the game? In addition, is this alliance really ready to give space to the Islamist parties? How will it be possible to reintegrate the Muslim Brothers into the process after the ousting of their leaders and the violent repression of which they have been the targets? As Nathan Brown observes in New Republic, this declaration assures the repetition of nearly all the errors of 2011, but this time in the absence of the Muslim Brothers.

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